Plaintiff (Counterclaim Defendant) (Attorney Kim Jong-hwan, Counsel for the plaintiff-appellant)

Defendant Counterclaim (Attorney Cho Jae-hwan et al., Counsel for plaintiff-appellant)

October 10, 2014

Suwon District Court Decision 2010Kadan49532 decided August 28, 2012 (principal lawsuit), 2011Kadan14137 (Counterclaim) decided August 28, 2012

1. All appeals filed by the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) against the instant principal lawsuit and counterclaim are dismissed.

2. The costs of appeal shall be borne by each party.

1. Purport of the principal claim

The Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) stated that USD 50,768.46 ($ 59,050.02 in the petition of appeal filed by the Plaintiff) in U.S. dollars 50,768.46 ($ 59,050.02 in the petition of appeal filed by the Plaintiff. However, in light of the calculation details of paragraph (5) of the Plaintiff’s grounds of appeal, this is obvious that it is a clerical error of USD 50,768), KRW 8,738,789, and KRW 20% per annum from the day following the date of the final judgment to the day of full payment (the Plaintiff’s claim was reduced in the trial).

2. Claim for a counterclaim

The plaintiff shall pay to the defendant the amount of KRW 11,55,316 as well as the amount of KRW 6% per annum from November 8, 2011 to August 28, 2012, and the amount of KRW 20% per annum from the next day to the date of full payment, and the amount of KRW 18,295,308 as well as the amount calculated by the ratio of KRW 20% per annum from the next day of service of the defendant's claim and the reason for the change as of May 20, 2013 to the day of full payment (the defendant withdraws his claim for delay damages against KRW 13,691,510 as of May 20, 2013).

3. The plaintiff's purport of appeal

The part concerning the principal lawsuit in the judgment of the court of first instance shall be revoked, and the defendant shall pay 50,768.46 and 8,738,789 won and 20% interest per annum with respect to each of the above amounts, from the day following the date the judgment of the court of first instance is rendered to the day of full payment. The part against the plaintiff among the part concerning the counterclaim in the judgment of the court of first instance shall be revoked, and the defendant's claim for the counterclaim corresponding to

4. The defendant's purport of appeal

Of the parts concerning counterclaims in the judgment of the court of first instance, the part against the defendant, which orders additional payment, shall be revoked. The plaintiff shall pay to the defendant 18,295,308 won and the amount calculated by the rate of 20% per annum from the day following the delivery of the defendant's application for modification of the purport and cause of the claim as of May 20, 2013 to the day of complete payment.

1. Basic facts

A. The Plaintiff is a person engaged in the export business of textile products with the trade name of “○○ Product”, and the Defendant is a person engaged in the manufacture and sales business of textile products with the trade name of “△△△△”.

B. On October 18, 2007, Nonparty 1, who represented the Plaintiff, concluded a sales contract to sell the machinery of which 165,000,000 won and 165,000 won (hereinafter “the instant sales contract”) with the Defendant for 4 roller A MHB 204 1SE (hereinafter “the instant machinery”). The main contents of the instant sales contract are as follows.

(2) The Plaintiff shall bear the expenses incurred in the sale of machinery within the limit of KRW 165,00,000 (Won 165,000,000) in the amount of the first purchase of the Plaintiff.

C. Meanwhile, the Defendant supplied the original team to the Plaintiff from July 2007, which was the transfer of the instant sales contract, from around July 13, 2007. The details of the original team supplied by the Defendant to the Plaintiff from July 13, 2007 to June 14, 2010 after the conclusion of the instant sales contract, including the original unit price, the details of the original unit price, and the details of the payment settled by the Plaintiff, are as listed in the separate sheet.

D. On December 28, 2007, the Defendant spent the instant mechanical transport cost of KRW 4,300,925 [$ 4,047.888, Chinese currency (RM) 3,900], KRW 10,338, Jan. 15, 2008, KRW 322,800, KRW 754,061, Jan. 16, 2008, in total, KRW 5,38,124,124,00.

[Ground for Recognition: Facts without dispute, Gap evidence 10-1, 2, Gap evidence 22, Gap evidence 43-2 through 7, 9, 11, Eul evidence 1, the purport of the whole pleadings]

2. The parties' respective arguments;

A. Summary of the plaintiff's assertion

1) On December 30, 2007, the Defendant affixed a letter of promise to sell raw materials and a letter of confirmation to purchase raw materials for foreign exchange earnings, and thereby, the settlement currency of the purchase price was changed to US$ 179,640.69 if the purchase price of the instant machinery was calculated by applying US$ 179,640.69, an exchange rate of October 18, 2007, which is the date of the sale contract. Thus, the Defendant is obligated to pay to the Plaintiff the remainder after deducting US$ 66,69,690.65, and the remainder after deducting US$ 1,67.58, which is the exchange rate of October 18, 2007, from US$ 179,640.69, which is the date of the sale contract.

2) On October 27, 2008, the Plaintiff paid 4,064,00 won as melt processing fees, customs clearance fees of 3,497,960 won, transportation expenses of 1,176,829 won, which is the sum of 8,738,789 won, due to defects in the original unit supplied by the Defendant (hereinafter “original unit supplied by October 27, 2008”), and the Defendant is obligated to pay the Plaintiff the damages incurred by the defects in the original unit and the damages incurred therefrom.

3) The Defendant’s failure to undergo the CCIC test on the instant machinery led to USD 1,180.30 of the transportation cost or other costs, which is the cost to be borne by the Defendant.

B. Summary of the defendant's assertion

1) Since the settlement currency of the purchase price among the terms of the instant sales contract is won as stated in the sales contract, the Plaintiff’s claim for the principal lawsuit on the premise that the settlement currency of the purchase price has been changed to US dollars is unreasonable.

2) From July 2007 to June 14, 2010, the Defendant supplied the headquarters to the Plaintiff. Of the public funds, the amount of 93,690,840 won was not paid by the Plaintiff, and the balance that the Defendant is liable to pay is KRW 79,585,672, and the Plaintiff is obligated to pay the remainder of 14,105,168 won after deducting the balance of the machinery from the original cost. Since the Plaintiff is obliged to bear the entirety of the transportation cost of the instant machinery, 5,38,124 won should be deducted from the instant mechanical cost.

3) To export the instant machinery used by the Plaintiff to China, under the conditions as prescribed by China, it shall undergo an CC test. In order to resolve the procedure related to the above inspection by packaging and shipping the said machinery without undergoing the above inspection, the Defendant spent 135,492.20 Chinese currency 17,173,636 won (i.e., 135,492.20 won x exchange rate 126.75 won x 126.75 won x 31 October 31, 2011) and damages for delay calculated at the rate of 6% per annum as prescribed by the Commercial Act from November 1, 2007 to October 31, 2011.

3. Determination

A. The settlement of the purchase price under the instant sales contract

Since the plaintiff asserts that the settlement currency of the purchase price under the contract of this case is US dollars, it is difficult to believe that part of Gap evidence Nos. 86 through 91, which seems to correspond to the plaintiff's argument, is as it is. According to the evidence Nos. 4 and 5, the plaintiff issued a letter of promise to sell raw materials to the defendant on December 30, 2007, stating that the total purchase price of the machinery of this case is US$ 179,640.69, and the plaintiff and the defendant issued a letter of promise to sell raw materials to the defendant on January 9, 2008, signed it with US$ 179,640.69, respectively, and submitted it to the Han Bank.

However, considering the above evidence Nos. 1, 2, 2, and 4-1, 5-1, 2, 6, and 25-2 of the evidence Nos. 1, 3, and 6-25 of the above evidence, and the following facts and circumstances acknowledged that the sales contract of this case was originally entered in Korean currency, i.e., the settlement of the purchase price is the most important part of the sales contract. However, if there is an agreement to change the contents of the existing sales contract or to prepare a new sales contract, it is not possible for the Plaintiff to change the contents of the existing sales contract or to prepare a new sales contract for the settlement of 10-1, 3, 400 won for the purpose of the sale of real estate purchased in Korean currency as 5-1, 400 won for the purpose of this case.

Therefore, it is reasonable to view that the settlement currency under the sales contract of this case is won currency as stated in the original sales contract.

B. The main agent to bear transportation costs under the instant sales contract

In light of the following circumstances acknowledged in light of the above evidence, the "transport costs" under the sales contract of this case means that the plaintiff bears the expenses for assembly, dismantling, etc., and separates the domestic expenses and the domestic expenses for the expenses for assembly, dismantling, etc., while there is no separate provision for the transportation expenses incurred in Korea and the transportation expenses incurred in China, and even according to the opinion submitted by the professional examiner, the plaintiff shall bear the total transportation expenses according to the sales contract of this case without any separate entry as to the delivery conditions, such as FOB or CIF, under the sales contract of this case, and the delivery of the machinery of this case to the place designated by the defendant by December 30, 207, in light of the purport that the delivery of the machinery of this case should be made by December 30, 207, the plaintiff shall bear the total transportation expenses of the machinery of this case under the sales contract of this case.

On the other hand, the plaintiff argued that the cost of domestic transportation in China should be borne by the defendant, who is an importing country, and therefore, it is difficult to believe that part of the evidence Nos. 86, 87, 90, 91, and 94, as shown in the plaintiff's argument, is stated in the evidence No. 1, and it is insufficient to recognize that there was an agreement under which the defendant bears a part of the transportation cost separately from the sales contract of this case solely on the ground that the import declaration price column was stated in the export declaration completion certificate, but the fact that the condition of FOB is stated in the export declaration completion certificate, is not sufficient to recognize that there was an agreement under which the defendant bears the transportation cost separately from the sales contract of this case

C. Determination on the principal lawsuit and counterclaim claim

1) Set-off and transportation expenses of the instant mechanical purchase price and the amount unpaid;

According to the above facts of recognition, the balance of the mechanical price of this case is KRW 87,523,648 as shown in the attached table, and the amount that the defendant should receive from the plaintiff is more than the above amount and is more than KRW 93,690,840, and there is no amount remaining after offsetting the above amount from the balance of the mechanical price of this case. Thus, the plaintiff's claim for the main claim of this case is without merit.

On the other hand, the amount remaining after the Defendant offsets the price of the instant machine from the original cost to be paid by the Plaintiff (=93,690,840 won - 87,523,648 won), and as seen earlier, the Plaintiff should bear the total transport cost of the instant machine in accordance with the instant sales contract. Since the Defendant paid KRW 5,388,124 on behalf of the Plaintiff the transport cost of the instant machine, the Plaintiff is obliged to pay the Defendant the balance of the said original cost and the transport cost plus KRW 11,55,316 (= KRW 6,167,192 + KRW 5,38,124).

2) Compensation for damages due to defects in the supply ledger of October 27, 2008

Considering that the Plaintiff sought compensation for damages from the defect of the original unit supplied on October 27, 2008, it is not sufficient to recognize that the Plaintiff suffered damages from the original unit supplied on October 27, 2008 by the Defendant as alleged by the Plaintiff. Meanwhile, considering the following facts and circumstances acknowledged by Nonparty 3’s testimony and arguments of Nonparty 7, 33, 43-20, 13-1, 2, and 13-1, 2, and 3 of Nonparty 3 of the first instance trial witness, i.e., (e., (i) the defect that occurred from the original unit supplied by the Defendant on October 27, 2008, and (ii) the Plaintiff made an agreement to return the original unit price to the Defendant on April 10, 2009, and (iii) the Plaintiff made an agreement to supply the original unit price to the Defendant on April 27, 2009 to the 20th of the supply of the original unit price to the Defendant.

Therefore, as long as the price of the instant machinery was calculated by subtracting USD 2.37 from the price of the supply source as of October 27, 2008 according to the above final agreement among the plaintiff and the defendant in accordance with the above final agreement, so long as the plaintiff paid expenses for the reprocessing of the said original unit, it is difficult to deem that the plaintiff suffered loss due to the defendant's reasons attributable to the above defendant's liability, and there is no other evidence to recognize this differently, the plaintiff's allegation in this part is without merit without examining the remaining points.

3) Transportation costs, etc. related toCC inspection

A) The Plaintiff asserted that the Defendant should bear the above expenses, such as transportation expenses, etc., due to the Defendant’s failure to undergo the CCIC test on the instant machinery, and thus, considering the overall purport of Nonparty 4’s testimony and pleading by Nonparty 4, the Plaintiff entered the instant machinery at the wharf upon the Plaintiff’s request, but Nonparty 4 did not obtain permission for import from China due to the failure to undergo the above CCIC test. In light of the overall circumstances as seen in subparagraph 2, it is difficult to recognize the fact that the cost of USD 1,180.30 was incurred due to the delay in shipment, but it is difficult to acknowledge the fact that the entry of Nonparty 9’s evidence No. 9-1 was caused by the Defendant’s causes attributable to the Defendant’s liability, and there is no evidence to acknowledge the fact that the Defendant had to bear the above expenses. Therefore, the Plaintiff’s above assertion is without merit.

B) Meanwhile, according to the overall purport of the statement and pleadings on the evidence No. 135,492.20 of the Chinese currency 135,492, which was paid by the Defendant to the Plaintiff as expenses related to theCC inspection, the Defendant came to know that in the process of loading the machinery of this case, the Plaintiff and the Defendant did not complete the CCIC inspection, which is an inspector required to export used machinery in China, and thus, the Plaintiff could not load the machinery of this case. In this regard, the Defendant asserted that the Defendant spent the 135,492.20 portion of the Chinese currency 135,492.20 between the Plaintiff and the Plaintiff on April 10, 2009, it is difficult to say that the Plaintiff would bear the burden of re-consultation by confirming the amount of expenses to be borne to the CC inspection office, and that the Defendant did not have any dispute between the Plaintiff and the Defendant as to the above amount to be borne by the Plaintiff and the Defendant on the grounds that it did not bear part of the expenses to be borne by the Plaintiff.

D. Sub-committee

Therefore, the Plaintiff is obligated to pay damages for delay calculated at the rate of 6% per annum under the Commercial Act from November 8, 2011 to August 28, 2012, which is the day following the delivery date of the Defendant’s request for counter-claim and the application for modification of the cause of the claim as of November 1, 2011, as the Defendant seeks against the above KRW 11,55,316, and as the Defendant seeks, from November 8, 2011 to the day following the delivery date of the application for modification of the cause of the counter-claim as of November 28, 201.

4. Conclusion

Therefore, the plaintiff's main claim is dismissed as it is without merit, and the defendant's counterclaim is justified within the scope of the above recognition, and the remaining counterclaim is dismissed as it is without merit. The judgment of the court of first instance is just in conclusion, and all appeals against the main claim and counterclaim of this case are dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Ham Jong-gu (Presiding Judge)